Over the past few year, states around the country have been decriminalizing and legalizing drugs like marijuana and psilocybin (“magic”) mushrooms. (South Carolina is not one of those states.) Even the federal government has been toying with decriminalizing marijuana, with the white House going as far as to pardon folks convicted of federal marijuana-related crimes.

Whether or not marijuana is as dangerous or addicting as alcohol is a matter of debate, but one thing is certain: the crackdown on alleged drugged driving has begin in earnest. The National Highway Traffic Safety Administration (NHTSA) claims that 56% of “drivers involved in serious injury and fatal crashes tested positive for at least one drug (based on studied trauma centers, Oct-Dec 2020).” That's a frightening number, but what that statistic doesn't tell you is that:

• The percentage is based off of data from five trauma units reporting 474 fatal injuries;
• The total number of people who were impaired by at least one substance was 266;
• Alcohol is included in the list of substances; and
• A total of 130 people had cannabinoids in their system.

We point this out because the data regarding drugged driving simply isn't comprehensive enough to make a determination about how dangerous it is. Even the Centers for Disease Control and Prevention (CDC) admits that “less is known about the harmful effects of drug-impaired driving compared to alcohol-impaired driving because of data limitation” (emphasis ours).

To combat the supposed scourge of impaired driving, many states have imposed stricter laws and penalties for people convicted of impaired driving charges. What they haven't done – indeed, which no state, including South Carolina, has done – is create a successful roadside test designed to identify drugged driving. Instead, many local law enforcement agencies turn to Drug Recognition Experts, or DREs, to help them determine if a person is truly impaired.

What is a Drug Recognition Expert?

A DRE is “an individual who has successfully completed all phases of the Drug Evaluation and Classification Program's (DECP) training requirements for certification as established by the International Association of Chiefs of Police (IACP) and the National Highway Traffic Safety Administration (NHTSA).”

In other words, it's a police officer or law enforcement officer who has completed special training that allows them to claim they are experts in identifying whether a person is under the influence of drugs, and what those drugs are.

How does a DRE determine if a person is on drugs?

There is a 12-step protocol that law enforcement uses to decide if they can charge a person with drugged driving. The DRE protocol steps are as follows:

1. Breath test: A breathalyzer test to determine your BAC.
2. Officer interview: DRE officers interview the field officer and get their first impressions.
3. Pulse reading: They will take your pulse and try to determine if you have an injury or medical condition.
4. Eye exam: They will have you follow a light, look at your pupils, and check for convergence.
5. Field sobriety test: There are three standard tests that are that are typically employed: Walk and turn, one-leg stand, and horizontal gaze nystagmus.
6. Second vital sign test: They check your blood pressure, pulse, and temperature check for the second time.
7. Darkroom exam: Additional tests are conducted in low light to look at your pupil contraction or dilation. Also, they may look for drugs in your nasal or oral cavities.
8. Muscle tone testing. They are looking for rigidity or flaccidity.
9. A third set of vitals.
10. Officer observations: Officers will ask direct questions regarding your current state, which they will note along with “other” observations.
11. Drug system analysis: They will review all evidence and compare it to known drug side effects.
12. Toxicology exam: Finally, they will perform a blood, urine, and /or hair follicle test to look for illegal substances in your system.

As you can see, many of these steps do not help anyone truly identify if a person is in a drugged state, and other measures are highly subjective. The only steps that may actually prove a person is under the influence are Step 1 and Step 12. (Note: you can legally refuse to take the breath test and/or refuse to give blood, urine, or hair.)

Drug Recognition Experts are looking for the effects of seven types of drugs:

• Central nervous system depressants: Alcohol, anti-anxiety, GHB, barbiturates, and more
• Central nervous system stimulants: Cocaine, meth, and amphetamines
• Hallucinogens: LSD, MDMA, psilocybin, or peyote
• Dissociative anesthetics: Ketamine, PCP, and Dextromethorphan
• Narcotic analgesics: Codeine, heroin, Demerol, morphine, opium, Vicodin, oxycontin, methadone
• Cannabis
• Inhalants: Paint, gasoline, paint thinners, hair spray, plastic cement, Toluene

What do DREs look for?

Determining whether someone is driving under the influence of drugs is much different than alcohol, but authorities look for certain signs. Police officers will be alert for slurred speech, eye dilation, and ability to walk to determine if you could be impaired. Unfortunately, their reports and testimony can go a long way in your criminal case.

Why you want a defense attorney when a DRE is called in on your case

A drug DUI charge is very complex, and your future can hang in the balance because of another person's opinion. The state can call DREs as expert witnesses, so the court can use their testimony against you. However, we argue on your behalf, demonstrating if their training is outdated, insufficient, or biased.

Furthermore, these tests can be inaccurate because you can suffer an impairment that causes you to limp or have a cognitive concern resulting in slurred speech; sometimes, the mere nerves of being pulled over are enough to impact you in these ways. Drug recognition experts will conduct testing at the police station, and they are never at the scene. A responding officer must have probable cause to take you to the station. DRE agents are also looking for odors on which they have “training,” but the smell of marijuana can linger for hours – and there may be no proof it was yours in the first place.

We don't believe these DREs processes and procedures are substantial for a drug charge, but the state disagrees. Therefore, we must use other strategies to defend you in court. One approach we will use is challenging the DRE's qualifications by questioning:

• Their medical training
• Training on distinguishing drug effects and medical conditions
• How well they did in their training courses and if they continued their education
• How many incorrect substances did the DRE identify on their exams
• Their track record and accuracy
• Was the protocol followed correctly?
• Did the alleged drug use actually impair driving?
• Did the DRE conduct the exam, or did they rely on other testimony and reports?

These are vital questions we will raise when deposing or questioning the DRE.

But we will also challenge the stop and the steps taken by law enforcement before the DRE even entered the room. We ask questions like:

• Were you lawfully stopped?
• Were you informed verbally or in writing about your right to refusal?
• Did you give consent to be tested?
• How long between when you were stopped and when you were tested?
• Do you have a valid prescription for a controlled substance?
• Was your car searched – and if so, was that search legal?

Challenging admissibility of the DRE's testing is one defense, but there many others.

A drug crime conviction carries heavy penalties like fines and imprisonment. They can change your life forever and prevent you from getting a job, housing, or more. You cannot and should not suffer these consequences because of someone's opinion. Call Holland Law or fill out our contact form to schedule a consultation with drugged driving defense lawyer in Fort Mill or Rock Hill. Proudly serving clients in York, Lancaster, and Chester Counties.